The Gay Rights Debate and the Death of Law and Literature
In a new essay, I argue that Law and Literature scholarship has run its course. Our 30 years of interdisciplinary work seems to have had no discernable effect on how judges or legislatures behave. Work by empirical scholars in economics and psychology seem to have tremendous traction, but the articles by even our best scholars seem to have little effect. I claim, however, after conducting two seminars (one with state judges and one with federal judges) that fiction itself directly influences the behavior of judges. Especially striking were conversations I had with judges after discussing Ariel Dorfman’s Death and the Maiden with them. I conclude that law and literature scholarship may be largely irrelevant, but fiction itself is alive and kicking in the background of the legal process.
The points just made about both empiricism and fiction seem vindicated in the movement that Martha Nussbaum describes as the transition from a Politics of Disgust to a Politics of Humanity. First, scientific studies demonstrating the genetic component of homosexuality surely have helped change attitudes. A former colleague did a study back in the early ‘80’s measuring attitudes of respondents toward individuals who were perceived to have made bad choices and those who suffered from unfortunate accidents of birth. One example . . . she asked people whether they would be more willing to help a blind person learn to read or an illiterate one. A vast majority preferred to help the blind person, and so on over multiple questions. Martha writes about the role of respect and sympathy in the Politics of Humanity. One might respect someone’s choice to become gay (not that I think it’s a choice) or maybe to stand tall and come out of the closet, but sympathy in the imaginative sense she describes also comes when we view the other person as choiceless, punished by society for an accident of birth. This is not a normative argument, but rather a descriptive observation about American society.
Second, I have little doubt that fiction (and I’ll include television and movies here) has played a huge role in the emergence of a Politics of Humanity, at least in the context of gay rights. Stories told well change people’s attitudes. My own embarrassing views about transgenderedness could not survive reading Jeffrey Eugenides’ Middlesex. Judges and legislators are consumers of these stories, and as readers they inhabit the lives of characters they encounter. The bravery and perseverance of authors and actors, straight and gay, in normalizing disuniformity and dispersing disgust cannot be underemphasized.
Now, if I could conclude that my law review articles packed a similar punch, I’d treat myself to a pint this Friday evening . . . what the hell, I’ll do so anyway!